Pick a politician for the Supreme Court

My first thought on hearing that Justice Stevens was retiring was that it'd be nice to see him replaced by a legislator with legal training rather than another lawyer. As Matt Yglesias writes, "this is one of these things that pundits say not just because it makes for an easy column topic but also because it’s actually true!" It's not just that the Supreme Court is a politicized court. It's also that it spends a lot of time dealing with questions of legislative intent, a discussion that would be undoubtedly enriched by a knowledge of, well, legislating.

You can go on and on with the reasons here. You can also just name off some of the legislators who've served on the Court: Hugo L. Black, a former senator; Earl Warren, a former governor; Sandra Day O'Connor, a former state legislator; John Marshall, a former representative. Suggesting that there should be some political experience on the court is not a break with tradition. Moving away from political experience on the court is.

I'm also of the opinion -- though lots of others on Twitter aren't -- that the Senate is likely to be friendlier when confirming one of its own. But the real question, of course, is who? I've always been partial to the idea of seeing Hillary Clinton appointed to the Supreme Court. She's got a law degree, of course. She's practiced law, practiced politics and practiced statecraft. She's been present in both the executive and the legislative branch. She's done an enormous amount of retail politics, which I think is useful. She's smart and hardworking and has proven herself adaptable to a wide range of institutions. The counterargument I got on Twitter is that she's controversial, but I'm not sure I really believe that anymore. She's well-known, and many Republicans in the Senate like her personally.

Clinton would be great. With Kagen a very likely nominee, there's going to be a whole lot more deference given to the executive. Someone who comes from the legislature knows the value of that branch of government and would likely push back against some of the expansion of the executive in the past 10 years. That would be a definite good thing.

It would shift the theoretical discussion a bit. Right now, all we hear about is originalism versus everyone else. All that abstract talk is really fun for law professors, but really means nothing to the average guy on the street. Having more deference to political decision makers, based on an O'Connor-esque pragmatism, would be a good thing in making cases more about people/cases and less about judicial ideology.

Politicians are the worst choices for the court because they tend to view cases in terms of outcomes rather than following the law.

John Marshall, the great Chief Justice, is disliked by some conservatives because of his general appreciation for federal government power. But more importantly, he believed that the power of the judiciary rested on it being the final arbitor of what the law was. That the judiciary must not be political.

Judges by experience understand the separation of law and politics. It is for that reason that President Obama should nominate a sitting judge like Diane Wood or Marrick Garland. They also will perform the best in their confirmation hearings because they are most exposed to the law on a day by day basis.

Hillary Clinton actually makes the most sense, if you're looking at the pool of politicians. And honestly, since the Republicans will filibuster no matter who the nominee is, I doubt the controversy of nominating her will matter.

I'm not sure who else would even be in the running, among the politician set. Maybe Deval Patrick.

I would pick Elizabeth Warren. She's not a practicing politician, but she has a *very* good understanding of politics, and much more connection to average American life than pretty much anyone else under discussion.

I've posted on several columns today about the replacement and have literally screamed: Hillary would be the perfect choice! She not only has a law degree but was one of the top lawyers in the country back in Arkansas when the state police where trying to keep Bill from trouble with his women. She is smart, loves detail (obviously more than politiking before crowds), and, yes, she would put her fellow former Republican Senators in a terrible bind if they wanted to reject her as an extremist liberal out of the mainstream. Hope Obama's staff is reading your blog!

This obviously isn't applicable to the current opening on the court, but wouldn't post-presidency Obama be a perfect choice? The guy taught constitutional law, and he's got experience as a legislator at the state and national level, as well as being president, obviously. Taft went from President to Chief Justice... couldn't Obama?

As for the current opening, HRC does seem like the best candidate, for all the reasons Ezra points out, as well as being female. Obama certainly seems to want to continue to re-balance the gender ratio on the court.

"al franken....how mad he makes the right makes me very happy.
but realistically, there are not too many senators that make a lot of (especially when considering filling the senate vacancy rules per state
Posted by: troylevy | April 9, 2010 5:34 PM | Report abuse"

when the country suffers, you too will suffer...
and that makes me happy...
when the voter revolution happens...
you will be on a list...

The local media here in Minnesota has been murmuring about Sen Amy Klobuchar as a long-shot pick for the open spot. Female, law degree, experience in court and in legislature. She seems to get along well with most Senators.

Politics would get in the way, however, as Tim Pawlenty would most likely appoint a Republican to her seat if she were to get the SCOTUS seat.

@lancediverson -- Not necessarily. Politicians view things in outcomes insofar as it benefits their electoral prospects. Because many politicians also have the necessarily legal training, it would be beneficial to the court to have some new perspectives.

Maybe an old-school NE Republican? That'd throw Republicans for a loop. One of those many former Reagan officials who backed Obama in '08, maybe?

Feingold would be a great choice. The man is insanely smart, graduated w/ honors from Harvard, etc. He's just so anti-power that no President would nominate him.

I'd like to see Andrew Cuomo as the nominee. He has a record of taking on big business and has legitimate credentials. If I'm not mistaken, Bill Clinton kicked around the idea of nominating his father to the bench, but it fell through. I'd like to see the a Cuomo on the bench.

In theory the idea of appointing a legislator is great, but it won't unless it's someone completely in the center. You can get away with appointing ideologues as long as they're already judges because it's not as obvious how partisan they are. But if Obama nominated anything close to a liberal Democrat, he'd get painted as trying to politicize a supposedly non-partisan body. It'd entirely play into the whole "Obama taking over the government" trope. The right answer to this puzzle is Harold Koh. He's a liberal and he's been confirmed by this Senate, but he's focused on international issues so it he can easily avoid the trap of a strict position on Roe.

Hillary Clinton would never, in a million years, want to be squirreled away in her chambers laboring over obscure questions about the Federal Rules of Civil Procedure, the intricacies of tax law or the nuances of criminal procedure. The role of a judge is one of the most profoundly isolated positions in Washington - the Justices routinely communicate via memorandum. The ida that someone who enjoys politics would want to become a Supreme Court Justice can only come from someone who hasn't gone to law school.

Former Virginia Governor Tim Kaine -- a brilliant lawyer with courtroom experience, a former missionary, a chief executive of the state named best-managed in the country and best place to do business, a FOBO and an individual with the personality to put together coalitions similar to those engineered by the late Earl Warren.

Unfortunately, probably won't happen given his current chairmanship of the DNC. Mitch McConnell's eyes would blow out of head and Jim DeMint would throw a clot.

I was actually coming around to the idea that HRC would be a great nominee. But lancediverson @5:35pm is right. She's too much the politician.

And another problem with her on the Court -- could you imagine if she drafted the majority opinion on something controversial like gay rights, abortion, school prayer or whatnot? (Actually, pretty much anything is controversial these days, so throw in taxes, eminent domain, the 3d Amendment, whatever.) There's a real risk those death panel people would just refuse, en masse, to accept the Court's legitimacy.

I wish I were the first person to say it, but Russ Feingold. He's a hero on campaign finance reform, he's happy to go against the grain, he's brilliant, a Rhodes scholar, and if anyone asks him a question on guns he can quote from his undergraduate thesis in which he defended the 2nd amendment.

Obama said when he was running for Senate that he'd like to be a Senator like Feingold, so he clearly admires him. And he's young! He's likely to be confirmed because the liberals love him, and he actually plays nice with the conservatives.

Nah, Clinton's weak on free speech. Putting a woman who co-sponsored anti-flag burning legislation on the Court is a bad idea. Particularly considering that she also sponsored the Family Entertainment Protection Act. The nominee, whether lawyer or legislator, needs to have a higher opinion of the First Amendment than Clinton does.

I was going to suggest Hillary's spouse, as a former president, might pose some kind of issue given his continued fundraising, high profile philanthropic efforts, etc., but it doesn't seem to be a problem for her as Secretary of State (and wasn't a barrier to Senate approval). Plus, Virginia Thomas is founding some kind of tea party organization, so I guess the "spousal autonomy" concept is alive and well over at the Supreme Court.

Whoever the choice may be, I certainly hope that President Obama is fully cognizant of the extent to which the Republicans have used ideology as their sole criterion for court choices beginning with Bork and Thomas.

The last thing that we need at this point is a justice who will defer to crazed ideologues like Scalia and Thomas in even the slightest way. The right wing knows exactly what the stakes are here, and aren't ashamed to proclaim it among themselves: This is war.

President Obama is certainly savvy enough to know this, and I pray that he acts accordingly.

With that in mind, Hillary Clinton would be a sublime choice, and she'd have little difficulty getting confirmed, no matter how much the tea party crowd might holler.

I'd go for the home-run liberal: Goodwin Liu , the brilliant law professor at UC Berkeley who was nominated to the 9th Circuit. Even John Yoo, a colleague of his at Berkeley says that while he is liberal...he is very well qualified and someone who a Democratic president would nominate. He is also very young, 39, I believe.

It wouldn't happen for other reasons anyway, but Hillary is too old. Not too old to serve, but old to be nominated for that job since you want someone who can serve 20+ years and while she maybe could it's risky.

I don't see why Clinton would make a great Justice. I haven't seen any distinguished analysis or constitutional writing on her part. A nominee should be more than a reliable vote; she should have the potential to influence the votes of others too. Where is the evidence that Clinton could play that role?

On the practical side, her explicit policy positions would provide Republican hearing fodder, especially regarding Roe. Would the nomination survive a filibuster threat? Is this a battle the administration wants to have--assuming Clinton wanted the job in the first place?

If Obama appoints a politician, my sense is that it will probably be Deval Patrick, who Obama may appoint when Ginsberg steps down. He is a very close friend and political ally of Obama's, he's well-credentialed, with a Harvard Law background and prior positions in the DoJ, and he may well be out of office after November.

Also, regarding Hillary: I doubt she'd do it now, though I always thought she was a likely pick for Chief Justice had Kerry won in '04.

Mr Klein, brilliant idea, why not nominate a politician? I have a better idea. Why not nominate a top producing used car salesman? I think that this would be a great idea, being that according to polls, used car salesmen rate ABOVE politicians in the area of who the public trusts more.

hillary and bill clinton have sold their souls to special interest groups. they are enmeshed with wall street, aipac, sovereign wealth funds.....they have both shown poor character and ethics...and for those very reasons, she was not elected to the presidency, nor should she be appointed to the supreme court.
the only reason she became secretary of state, was because a blind eye was turned to their financial dealings, their drama and their conflicts of interest.
she is exactly the kind of person who should not be on the supreme court.
i dont think people coming from politics and special interests have any place at all on the supreme court.
hillary and bill clinton have lied, have brought a level of drama to politics that has absolutely no place on the supreme court.
there are many distinguished people who have given great service and scholarship in the judicial system, who are deserving of this appointment.
hillary clinton is not one of them.

Mr Klein, brilliant idea, why not nominate a politician? I have a better idea. Why not nominate a top producing used car salesman? I think that this would be a great idea, being that according to polls, used car salesmen rate ABOVE politicians in the area of who the public trusts more.

Mr Klein, brilliant idea, why not nominate a politician? I have a better idea. Why not nominate a top producing used car salesman? I think that this would be a great idea, being that according to polls, used car salesmen rate ABOVE politicians in the area of who the public trusts more.

"She's done an enormous amount of retail politics, which I think is useful. She's smart and hardworking"

#1 i think a private and ethical life, without being tethered to special interests and scandals should be a pre-requisite for a supreme court justice. hillary clinton cant make that cut.

i think doing retail politics has nothing to do with the qualities one is looking for in a supreme court justice.
and there are many, many smart and hardworking people who have given exceptional service....who have not lied at difficult moments when the truth mattered, misrepresented facts when truth mattered and mishandled important matters when ego and good judgement should have come first.
she has shown poor character and judgement when it mattered the most, just as her husband has.
now she is tethered in her present position, and so it is easy to forget what history has shown about the clintons.
i hope she is not chosen for this position.

Feingold is 57 and running for re-election. I love the man, but I doubt Obama would pick him.

I like Sunstein too, but he's come out very strongly for animal rights, which makes him questionable on confirmation. Glenn Beck and the clown brigade has been after his neck ever since he joined the administration a year ago.

A clever choice by Obama could be to nominate either of the Republican Senators from Maine. Either is relatively moderate and would be easily confirmed. Then the Democratic governor of Maine could choose a Democrat to replace her. The election of Brown from Massachusetts would be essentially nullified and Democrats would have their potential filibuster proof majority back until January.

But recent history matters, and given the massive criticism Bush got for appointing Harriet Miers there is NO way the media would let Obama appoint a non-judge.

For this to work you would have to find a politician with some pretty substantial judicial experience somewhere in their past, or AT LEAST some relationship with the judicial system (say a member of the House or Senate Judiciary committee). Hillary Clinton won't cut it.

Sunstein's a smart guy but you know he would piss off a ton of liberals, and still get hammered by the Republicans (just because it's an election year and they can). He's been about the most vocal proponent of cost-benefit analysis (and, by extension, less consideration of environmental, health, and safety standards) one could find on the center-left.

I'd love to see Al Franken nominated, just to read the ballistic blogs. Go ahead, send them off the deep end -- they are there already. Your the President, nominate whoever you darn well please. The country elected you because we were sick and tired of these dead end Republicans who only know how to destroy things.

Totally agree with jkaren. Hillary is a ridiculous choice, except for those with the memory of an amoeba. This woman has many ethical lapses in her background and was given a total pass on that during the nomination struggle. To take even the simplest, most recent one: the amazing lie about her life threatening experience on the tarmac in Bosnia. She should not have been made secretary of state, and Obama's continuing patronage of her is quite curious. Her treatment of him before the primaries (she subjected him to a full bore Amish shunning because he dared to be a candidate) and during the primaries revealed a petty and vindictive personality. She has been rewarded too much already. David Boies is a sensible suggestion -- brilliant, unconventional, no known scandal attached to him yet.

On April 9, 2010 at 7:50 PM, Bostonian82 posted [quote] "Hillary Clinton would never, in a million years, want to be squirreled away in her chambers laboring over obscure questions about the Federal Rules of Civil Procedure, the intricacies of tax law or the nuances of criminal procedure. The role of a judge is one of
the most profoundly isolated positions in Washington - the Justices routinely communicate via memorandum. The ida that
someone who enjoys politics would want to become a Supreme Court Justice can only come from someone who hasn't gone to law school." [endquote]

Amen, Sister or Brother! I cannot imagine cute, controversial Hillary Babe willingly accepting appointment to SCOTUS. Hillary is a Power-Broker. Her intelligence, personality and temperament would drive her nuts, holed away for most of the rest of her life in a squirrel cage where she would no longer be free to freely offer her public opinion about anything except in SCOTUS case decisions. Boring, boring boring! The only good and succesful SCOTUS Justices IMHO are those Bean-Headed Brainiacs that do not like a social life very much and trully do not like people very much either, althoug they profess a philosophical love for humanity. Some have suggested earlier here, that it should be a politician with public office experience, because he or she would then understand the legislative branch and render SCOTUS decisions more in form with the legislative process. Huh? I think not! Then we would have nothing but a politicized court that do not have to suffer reelection. No, the next appointment should probably go to a well known moderate-minded scholarly law professor that has never served on the bench before and has published an array of
judicial articles on an array of public subjects. Since the foundation of our Republic, these kind of appointments have better served fair-minded legal and judicial interests as a nation. Oliver Wendell Holmes comes to my mind as a great example for my argument.

Glad to see I am not the first one to suggest Feingold. The only knock against him, as far as I can see, is age --he is already 57. (Odd that that's considered old, but still...) And especially with the campaign finance issue, he should be a relatively easy confirmation.

I have mixed feelings about HRC, but I think she would probably make a decent Justice. But, considering the appointment to State, I doubt that she is even under consideration (not to suggest that Feingold is). If anything, she'd be more likely to be a second-term appointment (although there's that age thing again...)

She never was, folks! Democrats just believed the stale Republican attacks against her in 2008 -- the same stale Republican attacks that the Obama campaign used against her (and added a few of their own, such as the specious "Hillary is a racist" rants. LOL, get real.) Nah, Hillary was always much better than that, and it's time for people to own up to the fact that any mistake wasn't hers, it was theirs. They forgot who she really is, when it mattered.

Thanks for the suggestion of having her as a SC nominee though, I'm sure she is delighted to hear so many people thinking so highly for her. But let's face it -- there is only one job Hillary is best suited for -- PRESIDENT.

David Boies in first place, Larry Tribe in second, Goodwin Liu in third, Hillary as the interesting long-shot distant dark horse.

All fantasy, of course.

Reality says none of the above...these are all very unlikely names ...more likely a boring safe bet will emerge, like Kagan, who will swing the court to the right and for whom the Republicans will only put up a pro forma opposition.